To say we were disappointed with the Supreme Court’s decision to strike down the law giving Americans born in Jerusalem the prerogative to list Israel as their place of birth would be an understatement. But it’s not just because we disagree with the result. We have always felt that criticism of a Supreme Court decision has to be based on more than that. There has to be some real flaw in the analysis, otherwise we would be joining the ranks of those to whom the Constitution is just a piece of paper that provides nothing by way of a framework within which to review our laws.
In fact, we find several disturbing elements in the court’s analysis. For one thing, the majority presented this case as if it fundamentally involved the constitutional power of recognizing foreign nations. Yet what was at issue was not whether Israel was to be recognized as a sovereign nation; that was decided in 1948.
The court’s finding that the president has exclusive jurisdiction in recognizing foreign countries might have been be apt if the issue at hand were a congressional attempt to grant recognition to “Palestine” as a state.
And of course President George W. Bush, when he signed the law at the heart of the dispute, said it did not change anything in terms of U.S. policy toward Jerusalem. So much for the fear that there would be confusion about American policy on that issue, which leads us to a major concern about the court’s analysis.
Justice Anthony Kennedy’s majority opinion went on and on about the policy reasons for finding that the president must have exclusive authority when it comes to the question of U.S. recognition of foreign countries. One of those reasons is the aforementioned worry over confusion; another is consistency in U.S. foreign relations. And there were several more.
But that does not mean the Constitution in fact addressed those needs by mandating presidential exclusivity. Even Justice Kennedy concedes that “Despite the importance of the recognition power in foreign relations, the Constitution does not use the term ‘recognition.’ ” Rather, he says, “the recognition power is based upon the so-called Reception Clause, which directs that the President ‘shall receive Ambassadors and other public Ministers.’ ”
We wonder whether the court’s approach in this case is a harbinger of what is coming in the Obamacare case the justices are currently considering. In that case, the interpretation of certain language in the Affordable Health Care Act is at issue. Yet the principal argument presented by the administration is a utilitarian one – that construing the words according to their plain meaning would result in vast disruptions in the American health care system. Reminds us a lot of Justice Kennedy’s analysis in the passport case.